United Bank for Africa Limited & Anor V. Rose Francis Louis (1994)

LawGlobal-Hub Lead Judgment Report

EJIWUNMI, J.C.A. 

This appeal is against the judgment of O. Ita, J. sitting at the High Court of Calabar in the Calabar Judicial Division of Cross River State. In that judgment, the claim upon the writ of summons taken out against the defendants jointly and severally was as follows:

“1. The plaintiff is and was at all material times a customer of the defendant Bank and operates savings account No. 2669 at the defendant’s Calabar Road Branch. Calabar within the jurisdiction of this Honourable court.

2. On the 25th day of July, 1986, the plaintiff duly completed all normal withdrawal formalities for the purpose and intent of withdrawing the sum of N 16,000.00 (Sixteen Thousand Naira) from her said account, but the defendant wrongfully and in breach of contract refused demands and despite further, the fact that her aforesaid account was fully in credit.
3. Further, the defendants in breach of their duty of secrecy as bankers and in breach of their fiduciary relationship with the plaintiff as customer wrongfully and maliciously proceeded to make available or show to one Mrs. Victoria Okon (the plaintiff’s employer at the material time) the plaintiff’s passbook/statement of account completed withdrawal forms and photograph, falsely implying and/or suggesting thereby that the money in plaintiffs said account was improperly obtained.
4. By reason of the matters in paragraph 3 hereof, which were without the consent, authority or knowledge of the plaintiff, the plaintiff’s said employer terminated the plaintiff’s employment on or about the 31st day of July, 1986.
5. By reason of these premises the plaintiff has been greatly inconvenienced and embarrassed and has suffered loss and damage.

WHEREOF the plaintiff claims against the defendants, jointly and severally, and on the footing of aggravated damages as follows:

(a) N 100,000.00 (Hundred Thousand Naira) general damages for breach of duty or negligence. Alternatively:

N 100,000.00 (Hundred Thousand Naira) general damages for breach of contract or for inducing breach of contract.”

Later in the proceedings, pleadings were ordered, filed and exchanged. It will appear from the pleadings and evidence led at the trial that the case of the plaintiff may be put thus:

From 1980 the plaintiff was an employee of Mrs Victoria Edet Ok on who is the owner of proprietor of Incan Supermarket situate and lying at No. 83 Edgerton Street, Calabar. The plaintiff from about 24 November, 1981 opened an account with the United Bank for Africa, Calabar Branch along Calabar Road. This Account is a Savings Account and it is a transaction that occurred in respect of the withdrawal of the sum of N16, 000.00 (Sixteen Thousand Naira) from the said account that would appear to have provoked the incident that led to this case.

On the 25th July, 1986, the plaintiff claimed that she went to the Calabar branch of the UBA where she had account to withdraw the sum of N16.000.00 from her savings account. For this purpose she filled a form for the withdrawal of the said sum and which she presented with her passbook to the Cashier No.3 in the bank. She was then given a tally No. 15 and her passport photograph was taken.

The plaintiff claimed that after she had presented the withdrawal form, the cashier told her that she should wait until the 2nd defendant signed the form for payment. The 2nd defendant was according to the plaintiff, the manager of the said branch of the 1st defendant. Plaintiff then claimed that after she had waited for sometime, the accountant of the bank who in this case gave evidence as DW2, informed her that she should go and come back at 12 noon. Plaintiff claimed that she refused to go and that while she was waiting, she noticed that the 2nd defendant telephoned her employer, Mrs Victoria Okon. Soon after the call was made, Mrs Victoria Okon came into the premises of the Bank and marched her to the office of the 2nd defendant. In the office of the 2nd defendant, plaintiff claimed that the said Mrs V. Okon scolded her. In the course of that, the 2nd defendant, sent DW2 to bring the file, passbook, and withdrawal form relevant to her account with the bank. In her presence. Mr. M.M. Essien brought the documents. After the documents were so brought, the plaintiff claimed that Mrs Okon and the 2nd defendant then asked that the money standing in her account, then N24,000.00 be split into two half to be given to Mrs Okon her employer. The plaintiff claimed that she refused to agree to this suggestion.

It will appear from the evidence that followed, that after the plaintiff refused to divide the money as suggested Mrs Okon, her employer left the scene as the evidence of the plaintiff read thus:

“I told them that Chief Andem Orok Nyong at Akpabuyo had the money and that it was family money. She said I was lying that I should submit a list of what I was using the money for and I said it was for purchase of materials to put up a building. The second defendant said I should go and Victoria Okon and if she said I was a thief I should accept. Victoria left me with the second defendant and went to her work at 83 Egerton Street, Calabar. At close of work, 2nd defendant took me round the Bank hall in the presence of the customers to the person who gave me the tally number and there abuses me calling me a thief of Victoria’s money. I was very angry and I reported the incident to the firm of Okoi Ita & Co. Solicitors.”

The solicitors thereafter apparently, wrote a note of letter to the 2nd defendant that she should be paid the sum she requested for by 11a.m. on 28th July, 1986. Before the money was paid, the plaintiff claimed that the 2nd defendant directed her to close her account with the bank but that she resisted the suggestion and told the 2nd defendant that she would do so only on the advice of her solicitors.

The plaintiff further claimed that she was paid the sum requested by her by 3 p.m. on the 28th July, 1986 and then on 31st July, 1986 her employer, Mrs Okon gave her a letter terminating her employment with her. Between 25th and 31st July, 1986, the plaintiff claimed that 2nd defendant and Mrs Okon, her employer, being like David and Jonathan were seen together in the Super Market where she worked. It is for this reason, namely, the fact that, she claimed, in the Banking Hall, the 2nd defendant referred to her as a thief and later caused her to be removed from her employment that she had brought this action. Two other witnesses were called by the plaintiff, namely, Ene Adam Orok as PW2 and Clement Etim Okon PW3. These two witnesses whose evidence will be discussed fully in the course of this judgment gave evidence supportive of the case for the plaintiff.

The defendants, on the other hand, called three witnesses. The 1st defence witness is Mrs Victoria Edem Okon, the employer of the plaintiff. Her evidence is a denial of the allegation that it was the 2nd defendant who telephoned her to come to the bank when the plaintiff was there. She claimed that she had been making enquiries on how her stores were depleted during her absence in the U.K. She claimed that on the morning of the incident, that is, 25th July, 1986 she discovered that the plaintiff had moved from the cashier position she was occupying to the Vegfru depot. She then traced her to the place after she had gone to the bank where she found her. It was from there she went to the bank with some soldiers who were husbands of women who had been customers to the super market. In the bank she claimed that she asked the plaintiff to withdraw the money she had come for so that they may return to the office. It was while she was talking to the plaintiff that the 2nd defendant came out from her office to tell her, that is, Mrs. Okon, that she was embarrassing her. As for the 2nd defendant her evidence is a denial of the story of the plaintiff, that they showed the account of the plaintiff to her employer, namely, Mrs Okon. At the end of the hearing, of oral evidence learned counsel for the parties addressed the court. The learned trial Judge delivered a reserved judgment wherein he made the following findings:

(1) the 2nd defendant and the Relief Manager disclosed to DW1 the account of the plaintiff by word of mouth and not directly by placing before her withdrawal document of the plaintiff;

(2) the 1st and 2nd defendants (acting on the unlawful request of DW1 not to pay plaintiff on the unfounded suspicion that the plaintiff was one of the staff of DW1 who had duped her) made default to pay the plaintiff throughout the course of the 25th day of July, 1986;

(3) when finally payment was made to her on 28th July, 1986, it was at 3 p.m., that is to say, at the closing time of the Bank, and that ignored the fixed time for payment by the solicitors of the plaintiff;

(4) the 2nd defendant was not a dormant manager as she sought to prove because she signed the Handing over notes on 29th July, 1986 when this episode took place on 25th and 28th respectively of July, 1986;

(5) by her testimony and that of the Accountant, the Relief Manager invited the 2nd defendant into the arena of this episode and she advised him what to do;

(6) evidence of PW2 is uncontroverted that the 2nd defendant pleaded with him to fetch the plaintiff on 28th July, 1986 to come for her money and he obliged which led to the plaintiff collecting her money, the witness added that the 2nd defendant derided the plaintiff as a short thief who came after stealing went about bring lawyers on to the scene.”

He then held that upon evidence that he was satisfied that the plaintiff had proved a substantial part of her case, which is breach of contract and secrecy. The learned trial Judge accordingly found the defendants liable. In his view, he held that the evidence established that the defendants committed (a) Breach of Secrecy over the savings account of the plaintiff as operated by the plaintiff. (b) Breach of duty to pay plaintiff on demand out of available funds in that account on 25th July, 1986. He then went on to award the sum of N20,000.00 (Twenty Thousand Naira) which he considered as adequate compensation for breach of duty and secrecy and the plaintiff’s loss of her job with Incan Super Market, Calabar.

In addition, plaintiff was awarded costs in the sum of N300.00 (Three Hundred Naira).

Being dissatisfied with this judgment and orders of the lower court, the defendants have appealed to this court on four grounds of appeal which without their particulars read thus:

(1) The learned trial Judge erred in law in his assessment of the evidence whereupon he made findings unrelated to the facts for the proper determination of this case where contract by conduct may be inferred. Learned trial Judge with respect arriving at the wrong conclusions from the evidence on record.

(2) The learned trial Judge, with respect, failed to make proper use of the advantage of having seen and heard the witnesses in person by not relating oral testimony to documentary evidence, etc, failing thereby to give prominence and consideration to relevant exhibits in this case.

(3) Findings made for Breach of Secrecy and Breach of Duty fail completely outside the evidence of the plaintiff and upon such findings the learned trial Judge awarded to the plaintiff reliefs/remedies she never claimed.

(4) The damages awarded in this case is excessively punitive and the assessment for same is not in conformity with the laid down procedure formulated by the Supreme Court in a long line of cases like A.G Oyo State v. Fair Lakes Hotels (No.2) (1989) 5 NWLR (Pt.121) p.255.”

In accordance with the Rules of this court, the parties by their learned counsel filed and exchanged Briefs of Argument. And at the hearing, learned counsel appearing for them adopted their respective briefs. From henceforth, the defendants shall be referred to as the 1st and 2nd appellants, while the plaintiff would be referred to as the respondent.

For the appellants, their learned counsel framed six issues for the determination of the appeal and they are as follows:

(i) Whether the learned trial Judge did not consider extraneous circumstances in arriving at his judgment.

(ii) Whether the learned trial Judge did not in his judgment formulate a case which was not the plaintiff’s case

(iii) whether the plaintiff established by credible evidence that the 2nd defendant positively revealed her account to her employer

(iv) Whether this is not one of those instances that the Court of Appeal can reverse the findings of facts of the Trial Court for being perverse, etc.

(v) Whether the damages awarded by the learned trial Judge was not altogether unwarranted, excessively punitive and not supported by the evidence adduced

(vi) Whether the failure of the learned trial Judge to give proper prominence to exhibits tendered by the defendants did not prejudice the case of the defendants.

Similarly, the respondents not willing to be out done on the setting of the issues for the determination of this appeal, identified the following as the nine issues that ought to determine the appeal:

(i) Whether the plaintiff (respondent) proved her case and was entitled to judgment.

(ii) Whether the learned trial Judge misdirected himself in any way as to the standard of proof.

(iii) Whether the learned trial Judge correctly directed himself as to the onus of proof having regard to the pleadings and evidence before the court.

(iv) Whether the defendants (appellants) owe the plaintiff/respondent any duty in law.

(v) Whether there was a breach of that duty

(vi) Whether there is any legal defence established in law absorbing (sic) the defendants/appellants from that duty.

(vii) If the plaintiff/respondent had proved her case what should be the quantum of damages.

(viii) Whether from the circumstances of this case the learned trial Judge was right in awarding relief for damages.

(ix) Assuming without conceding that the contract was not one by conduct, was the learned trial Judge to have held as he did.

From a careful reading of the issues as framed for the parties in their respective briefs, and having regard to the grounds of appeal, I think that the issues as framed are prolix and do not in my view, properly identify the purport of the complaints of the appellants in their grounds of appeal. In view of this observation. I thought it desirable to formulate the following issues which embrace all that I consider that the appellants wish to urge in this appeal. They read thus:

“(1) Whether having regard to the pleadings the learned trial Judge properly evaluated the evidence lead at the trial including all the exhibits admitted before upholding the claim of the respondent.

(2) Whether the respondent established by credible evidence that the appellants in breach of their obligation to the respondent disclosed to her employer the position of her account with the 1st appellant.

(3) Whether the subsequent termination of the respondent’s employment by her employer was caused by the disclosure of her account with the 1st appellant to her employer.

(4) Whether the learned trial Judge was right to have awarded damages.

With the reformation of the issues by me, I will now consider the argument of counsel, beginning with that of the learned counsel for the appellants, Orok Ironbar, Esq. In his brief, he argued together his own issues 1, 2, 3, 4 and 6, subsumed under grounds 1 and 3 of the appellants’ grounds of appeal. These issues are now to be considered under issues (1) & (2) framed by me. On these issues, the first contention made for the appellant is that though the learned trial Judge claimed to have evaluated all the testamentary and documentary evidence before him at pages 101 – 106 of the record of proceedings, it is the submission of learned counsel that the learned Judge failed or neglected to note the contradictions and/or discrepancies of the evidence led in support” of her case by the respondent. In support of his submission, he contends that the evidence of Ene Andem Orok, PW2 contradicts the evidence of the respondent that she did not, on the 25th of July, 1986, leave the Bank after she had submitted her withdrawal form. Also regarded as a contradiction to the evidence of the respondent is Exhibit 1, i.e. the letter dated 26/7/86 written to the 1st appellant. Learned counsel for the appellants, therefore submitted that in view of the contradiction between the evidence of the respondent and her witness and the document tendered by her on crucial points material to her claim, the learned trial Judge was wrong to have upheld her claim.

The learned trial Judge is also faulted for believing PW2, whose evidence it is argued, stands in contradiction to that of the respondent. It is further argued for the appellant, that in any event, the learned trial Judge misdirected himself in believing his evidence on the vital issue that form the foundation of the respondent’s claim. It being the contention of the appellants that PW2 did not give any evidence in support of the respondents claimed for breach of secrecy and breach of contract.

Responding the learned counsel for the respondents, in the respondents brief argued with regard to the contradictions and/or discrepancies between the evidence of the respondent and her witnesses that the contradictions, if any, are not material. Upon that premise he proceeded to present in the entire brief his arguments for upholding the judgment of the learned trial Judge.

Before considering this later contention on the merits of the judgment of the lower court. I propose to examine briefly the submission dealing with the contradictions and/or discrepancies in the evidence of the respondent and her witness, and also the Exhibits tendered in the course of the trial. And for this purpose it is desirable to refer to some of the pleadings filed to identify the issues joined at the trial. In this regard, see paragraphs 2, 3, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the respondent’s pleadings which are relevant.

The appellants by their pleadings admit generally that the 1st appellant is a banker and though they admitted that the respondent is a customer of the bank, they denied that they knew that she was holding or operating the account No. 2669 she had with them on behalf of any family or groups of persons. See paragraphs 4, 5, 6, 7 and 8 of the appellants’ statement of defence. The appellants, however, denied liability for the allegations made in the respondent’s pleadings, in paragraphs, 9,10,11,12,13,14,16,17,19, 20, 25 of their statement of defence.

The rest of the pleadings of the appellants consist of their averments that they had not deliberately or by negligence interfered with the respondent’s account.

They also pleaded the several circulars and rules which guide their operations in their banking business. Their main assertion being that under the rules of ban king, they are under strict obligation to protect the secrecy of the accounts of their customers. And that the account of the respondent in this appeal was so protected.

Thus by the pleadings as joined and the evidence led, it seems clear that the respondent’s position is that she is claiming that (1) she was not paid her money upon demand; (2) That her account was exposed to her employer who was invited by the appellants to the bank for that purpose; (3) That she was humiliated by the 2nd appellant within the Banking Hall of the 1st appellant and was publicly brought to ridicule and shame by being called a thief to the hearing of several people in the Banking Hall of the 1st appellant.

On the other hand, the appellants pleaded that they were willing at all times to pay to the respondent the money she wanted from her account. That she was not paid on that day, she could not be found. That at the close of the day’s business on that day, the appellants had to reverse the account to balance their account for the day. That the appellants did not disclose her account to her employer Mrs. Okon, and had nothing to do with the loss of her job with her employer. And that when she presented herself to the Bank on Monday the 28th of July, her money was duly paid to her. That no one asked her to close her account nor was she asked to split the money in her account with her employer.

Before considering the issues raised any further, I think it is pertinent to remark that the learned trial Judge has quite properly ruled out any liability with regard to whether the respondents was defamed by virtue of what was said to and about her during the banking transactions that occurred on the 25th and 28th of July, 1986.

It is, I think, desirable to re-state the well settled proposition of law that parties are bound by their pleadings. Their case stands or falls by the averments in those pleadings and the evidence adduced in support of those averments. Any evidence not supported by the pleadings have to be ignored. See Emegokwue v. Okadigbo (1973) 4 S.C.113; Shell B.P. Ltd. v. Abedi (1974) 1 All NLR (Pt. 1) at 16; Obimiami Brick & Stone (Nig.) Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (Pt.229) 260 at 312.

This now leaves free the consideration of the main question for determination in this appeal. And this is whether upon the evidence adduced by the respondent on the printed record in support of the claim of the respondent that the appellants did not pay the money to which she was entitled after making lawful demand for it. Upholding the claim, the learned trial Judge held thus:

“I hold that there was no justification to refuse, neglect or delay making payment to the plaintiff having regard to the evidence of DW3 (Aka the 2nd defendant) that there was no suspicion about the plaintiff’s lodgments to occasion investigation by the bank before payment in spite of the claim by the defendants that DW1 intervened which occasioned the delay. The evidence of DW3 shows that DW1 had no right in law to intervene occasioning delay in payment of the plaintiff on the premises of the 1st defendant.”

After coming to the above conclusion, the learned trial Judge in apparent justification of that finding then went on to make the following observation on the evidence of DW3 and the respondent and her witnesses. I quote:-

“There is conflict in the evidence between DW1 and DW3 – thus DW1 said there was commotion in the Bank, DW3 denies it, adding that the way things are at the bank, such commotion could not have taken place, but PW1, PW2 and PW3 all support the presence of many people in the Bank that day, DW1 calls the situation rowdy.

I believe the plaintiff’s evidence. DW1 said that DW3 complained of being, embarrassed by DW3 who retorted that it was a domestic affair of Incan Supermarket which played on the 1st defendant’s bank premises. If the 1st defendant allowed on their premises the commotion or rowdiness occasioned by DW1, they are liable for the legal consequences thereof.”

Later in the judgment the learned trial Judge again evaluated the evidence of DW1 and DW3 in this manner;

“The plaintiff says that DW1 informed her that DW3 told DW1 of the plaintiff’s account and that is strenuously denied by both DW1 & DW3. The basis of believing the plaintiff’s evidence she said is that DW1 told her so, now that DW1 has denied it in her evidence, there is no ground to believe the same. Besides, the rule of hearsay excludes it. But the Accountant testified and denied being asked to take the account papers of the plaintiff to DW1 to see or doing so on his own initiative. It is in evidence that the plaintiff’s account papers were seen by the Accountant, the relief manager and also by DW3, but not that any of them showed them to DW1.”

But in spite of the above analysis of the evidence of the respondent and the witnesses for the appellants, the learned trial Judge went to hold thus:

“I hold that DW1 also knew about the account of the plaintiff for her to come in and virtually cause the delay in the payment of the sum demanded on 25th July, 1986. As will be clearer hereinafter DW1 was told by the Relief Manager and DW3 of the state of the account of the plaintiff which roused the ire of DW1 in moving to block payment.”

The above passages from the judgment of the learned trial Judge have been variously attacked by the learned counsel for the appellants in the appellants’ brief of argument. As his arguments have been reviewed above, I will only advert here to the major points made by him. The first being that the learned trial Judge failed to base his conclusion upon the evidence led at the trial, and secondly that the evidence of the respondent did not establish her allegations against the appellants.

The learned counsel for the respondent, in arguing contrary to the above, has urged that this court should uphold the judgment of the lower court. In his view, based upon the evidence at the trial, the learned trial Judge came to a proper conclusion in finding the appellants liable.

Before deciding upon the contentions of learned counsel, it is desirable that the well known principles relevant to trials in civil cases be referred to. The principle to which I am referring to is that which places, in civil cases, the burden of proof on the plaintiff, or the person who will lose a claim, and which has been also laid down in section 135, 136 and 137 of the Evidence Act, (CAP 112) of the Law of the Federation 1990. It follows then that on the state of the pleadings, the onus lies on the respondent to prove the allegations levelled against the appellants.

It was part of the general burden which she assumed at the trial to prove those facts, by reason of the case she brought to court. Until she has discharged the evidential burden of calling all evidence needed to be called on those points, the defendants had no duty to call any evidence or to prove anything. See Okunzua v. Amosu (1992) 6 NWLR (Pt.248) 416; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523 at 541.

Thus it has been held that the plaintiffs must rely on the strength of their case and not on the weakness of the case for the defendants. See also Iyaji v. Eyigebe (1987) 3 NWLR (Pt.61) 523; Obiaso v. Okoye (1989) 5 NWLR (Pt.119) 80; Famuroti v. Agbeke (1991) 5 NWLR (Pt.189) 1.

The respondent as the plaintiff must therefore depend on the quality and quantity of the evidence called by her to sustain her claim. But where there are facts or any evidence called by the defendants which support her case, then such evidence could be called in aid of her case. See Bankole v. Pelu (supra); and Akinola v. Oluwo (1962) 1 All NLR 224, P.225, (1962) 1 SCNLR 352.

With these principles in view, I now wish to consider whether the learned trial Judge was right to have held that the appellants unduly delayed the payment of the money which the respondent asked for on the 25th of July, 1986. For this purpose it is necessary to refer to the evidence of the respondent herself. It is clear from her evidence that after she went to the Bank on the 25th of July, 1986 to collect the sum of N16,000.00 from the Bank. That after she had filled the necessary forms to withdraw the money, the Accountant was said to have told her to return at noon of that day. She claim that she did not go as advised. But alleged that she was kept in the bank all day without being paid the money. In the meantime, she said that she was asked to write a letter indicating what the money was to be used for and secondly the owner of the money. This letter according to her and her witnesses was duly written. But this was denied by the appellants, both their pleadings and in the oral testimonies of the appellants and their witnesses. In such circumstances the respondent ought to have tendered the letter, and that would have gone a long way in resolving the conflicting evidence as to whether the respondent was present in the bank throughout the 25th of July, 1986 as she claimed.

In this regard, be it noted that in Exhibit I, the letter written by the respondent’s solicitors to the appellants a lot of emphasis was placed on the alleged letter that the respondent was asked to write before she would be allowed to withdraw the money. Yet as already stated, not only was the letter not tendered, no effort was made by the respondent to demand for the letter during the trial from the appellants. It must be remembered that on this point there was evidence before the court that the respondent could not be found on the premises when she was to be paid, and the payment which had been approved had to be reversed.

Another aspect of the evidence of the respondent concerns her assertion that on that day, that the 2nd appellant having telephoned her employer, Mrs V. Okon, DW1, she was taken into the office of the 2nd appellant where she was scolded in the presence of her employer. And that during that period, the 2nd appellant sent for the cashier, Mr. M.M. Esssien, DW2 to bring her file and passbook and the withdrawal form, and further claimed that DW2 brought them as directed. After they were so brought, that according to the respondent, she was asked to divide the sum of N24,000.00, which was then standing to her credit in her account between herself and her employer, Mrs V. Okon, DW1. Again the appellants denied these events both in their pleadings and in the evidence led on their behalf.

In such a situation it is for the respondent to prove by probative evidence that the appellants deliberately refused or neglected to pay her the money she requested for from her account with the appellants. The learned trial Judge in my view in assessing the evidence of the appellants took the position as if it was for the appellants to establish that they were not negligent or unreasonable in paying the respondent.

It is also my view that it is the same reasoning that led the learned trial Judge into holding that the appellants disclosed the account of the respondent to her employer. With the greatest respect to the learned trial Judge, it seems to me that once he had rejected the evidence given on this point by the respondent as hearsay, the respondent no longer has any evidence to rely upon to ground her claim. The learned trial Judge, in my humble view cannot then proceed to find the appellant liable upon the evidence of the appellants denying that they disclosed the content of the accounts of the respondents to her employer.

The position would have been different if there had been evidence from the appellants showing a direct admission of that fact, or evidence upon which it would be reasonable to raise such an inference. In my opinion there is no evidence from which such an inference could be raised upon the evidence of the appellants and their witnesses.

Now as it is clear that if the contention of the appellants is upheld, that would mean a reversal of the findings of the learned trial Judge. But, I must bear in mind that the settled legal position is that issues of facts are pre-eminently those of the court of trial. The presumption being that the decision of a court of trial of fact is correct and that presumption must be disproved by the appellant before an appellate court can interfere. See Williams v. Johnson (1937) 2 WACA 253 at 254.

It is also true that it is not the function of an appellate court to substitute its own views for those of the trial court, particularly where the issues depends on the credibility of witnesses – Oghero Egri v. Edebo Ukperi (1974) NMLR 22. But where a trial court failed to properly evaluate the material before it, as the case here, an appellate court will, in the interest of justice, set aside its decision. See Otokhagua Ozibe v. Aigbe (1977) 7 S.C.1 at 11 and Samuel Ola Oladehin v. Continental Textile Mills Ltd. (1978) 2 S.C.23 at 28.

Having carefully examined the totality of the evidence adduced at the trial, I am satisfied that the learned trial Judge was wrong to have held the appellants liable for not paying the respondent her money on the 25th July, 1986.

The events of the 28th July, 1986 with regard to the payment of the money to the respondent deals mainly with the letter exhibit I written to the appellants by the respondent’s solicitors. In order to come to a conclusion that there was a delay, the learned trial Judge held that the appellants failed to pay the money by 11 a.m. contrary to the express instructions in the letter, Exhibit I. But, the learned trial Judge then went on to find as a fact that the respondent had to be sent for by the appellants to come and collect the money (vide evidence of PW2). It does seem to me and with due respect to the learned trial Judge that upon that evidence, the proper inference that ought to have been drawn was that the respondent was dilatory in the pursuit of her interest. I do not therefore consider that it is proper in such circumstances to fasten negligence or liability upon the appellants for paying the respondent when she was paid.

With the conclusion reached above that the learned trial Judge was wrong to have upheld the claim of the respondent the award in damages must also be dismissed.

This inevitably follows as the award in damages depends on her success in establishing that the appellants negligently allowed the respondent’s employer to see her account, and that she not only suffered delay in being paid her money, but that the termination of her employment was caused or motivated by the knowledge gained from the 2nd appellant. On this last point, I need to add further that with respect, it seems that the learned trial Judge wrongly perceived the position of the respondent’s employer in the proceedings. It is my humble view that if the learned trial Judge had treated the respondent’s employer, as a witness which she was, and not a party to the suit, the appraisal of her evidence in the trial would have been different. I say no more, except to say that whatever grievance that the respondent may have against her or any other person ought to have been pursued in an action in which she would have been made a party thereto.

It follows from all that I have been saying that this appeal succeeds in its entirety.

The judgment and orders of the lower court are hereby set aside. The appellants are awarded costs in this court and the court below and assessed in the sum of N1,000.00 only.

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Other Citations: (1994)LCN/0182(CA)